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In Viteri v Pflucker, 550 F.Supp.2d 829 (ND
Illinois 2008) on February 28, 2008, petitioner, Carlos Viteri, filed a
Petition for Return of Child under the Hague Convention. In his
petition, petitioner alleged that he and respondent, Gabriella Maria
Pflucker, were the parents of the minor child, Valeria Carla Viteri
Pflucker, who was born August 24, 2000, in Lima, Peru. Petitioner
alleged that after the parties' relationship ended around October 2003,
petitioner obtained visitation rights from the Peruvian courts.
Petitioner further alleged that on September 3, 2005, respondent left
Peru with the child and traveled to the United States, and did not
return to Peru by the time her tourist visa expired on October 3, 2005.
According to petitioner, since that time, respondent has neither
returned the child to Peru, nor allowed petitioner visitation with the
child. Petitioner requested the return of his daughter to Peru under the
Convention so that the Peruvian courts may conduct custody proceedings.
The respondent stipulated that the child's habitual residence prior to
her retention of the child in the United States was Peru. Neither party
addressed the issue of wrongful removal or wrongful retention. As
respondent obtained a court's permission to travel with the child to the
United States for 30 days, for the purposes of this motion the court
referred to respondent's actions as those of wrongful retention. Peru
acceded to the Convention on May 28, 2001, the Convention entered into
force in Peru on August 1, 2001, and that the Convention did not enter
into force between the United States and Peru until June 1, 2007. The
Convention entered into force for the United States on July 1, 1988.
Respondent moved to dismiss the petition for lack of subject matter
jurisdiction. Respondent argued that the Convention was not in force
between the United States and Peru at the time the child was retained,
and therefore, that the court did not have jurisdiction under the
Convention to order the return of the child. Respondent argued this case
should be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1)
because the Convention only applies to wrongful removals or retentions
occurring after its entry into force in Contracting States and that the
Convention was not in force between the United States and Peru at the
time of the child's wrongful retention in this case. Respondent moved to
dismiss the petition for lack of subject matter jurisdiction.
Respondent argued that the Convention was not
in force between the United States and Peru at the time the child was
retained, and therefore, that the court did not have jurisdiction under
the Convention to order the return of the child. In the court's view,
respondent's motion is more appropriate pursuant to Rule 12(b)(6).
Petitioner's claims arise under the Convention, and thus, both 28 U.S.C.
1331 and 42 U.S.C. 11603(a) give the court subject matter jurisdiction
to adjudicate petitioner's claims. In actuality, respondent's motion did
not challenge the court's power to rule but, rather, whether petitioner
stated a cause of action entitling him to relief. A few district courts
that have looked at similar issues have applied both Rule 12(b)(1) and
Rule 12(b)(6) without much discussion. See Taveras v. Taveras, 397
F.Supp.2d 908, 910-913 (S.D.Ohio 2005); Mezo v. Elmergawi, 855 F.Supp.
59, 64 (E.D.N.Y.1994).
The Court pointed out that Articles 35 and 38
of the Convention were those which were most pertinent to respondent's
motion to dismiss. Article 35 states, "This Convention shall apply as
between Contracting States only to wrongful removals or retentions
occurring after its entry into force in those States." Article 38 states
that the Convention is open to accession by non-member States, and that,
"The Convention shall enter into force for a State acceding to it on the
first day of the third calendar month after the deposit of its
instrument of accession." Article 38 further states that after a State's
initial accession, " The accession will have effect only as regards the
relations between the acceding State and such Contracting States as will
have declared their acceptance of the accession.... The Convention will
enter into force as between the acceding State and the State that has
declared its acceptance of the accession on the first day of the third
calendar month after the deposit of the declaration of acceptance. Thus,
the Convention enters into force between an acceding State and a member
Contracting State only when the Contracting State accepts the acceding
State's accession to the Convention.
In this case, there were two primary issues.
The first was whether the court should interpret Article 35 liberally to
apply to actions where the wrongful removal or retention of a child
occurred before the Convention was in force in a particular State, but
continued after its entry into force. If the answer to the first inquiry
did not allow such a liberal application, the second issue that arises
is whether, in light of the language of Article 38, Article 35 applies
to wrongful retentions involving Peru and the United States, which
occurred after Peru's initial accession to the Convention, but prior to
the United States' acceptance of Peru's accession.
Initially, petitioner argued that because
respondent's wrongful retention of the child had continued following
both Peru's accession to the Convention and the United States'
acceptance of Peru to the Convention, a liberal interpretation of
Article 35 allows the Convention to apply in this case. Article 35
states that the Convention applies "only to wrongful removals or
retentions occurring after its entry into force in those States." Thus,
the language of Article 35 clearly limits wrongful removals and
retentions subject to the Convention to those that occur after its entry
into force. However, both the State Department's legal analysis and the
explanatory report by Elisa Perez-Vera, the official Hague Conference
reporter for the Convention, suggested that a more liberal
interpretation of Article 35 may be appropriate. The Department of State
report provides:" Article 35 states that the Convention shall apply as
between Contracting States only to wrongful removals or retentions
occurring after its entry into force in those States. Following a strict
interpretation of that Article, the Convention will not apply to a child
who is wrongfully shifted from one Contracting State to another if the
wrongful removal or retention occurred before the Convention's entry
into force in those States. However, under a liberal interpretation
Article 35 could be construed to cover wrongful removal or retention
cases which began before the Convention took effect but which continued
and were ongoing after its entry into force." Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494,
10,504 (1986) (hereinafter State Department Analysis).
Petitioner argued that the court should
interpret Article 35 liberally, consistent with the comments of the
State Department analysis and Perez-Vera's report, and found that
because the child's wrongful retention in the United States continued
after the Convention was in force between Peru and the United
States, the Convention applied. Respondent argued that the term
retention, as used in Article 35, is a solitary event that, in this
case, occurred prior to the entry into force of the Convention between
Peru and the United States. The court agreed with respondent.
The judicial authority offered by the parties
supported the interpretation of "wrongful retention" as a solitary
event. [See Taveras, 397 F.Supp.2d at 909; In re H. and In re S., [
(1991) ] 2 A.C. 476 (H.L.)] Moreover, aside from the language of the
Convention itself, this interpretation was supported by the negotiation
and drafting history of Article 35, as accounted by Perez-Vera. The
court declined petitioner's invitation to liberally interpret Article 35
as allowing the Convention to apply to wrongful removals or retentions
that occur prior to entry into force, but continue after the entry into
force. Consequently, the court considered the static date of the alleged
wrongful retention October 3, 2005, and applied Article 35 accordingly.
However, this did not end the inquiry. In this
case, the child's alleged wrongful retention occurred prior to the
Convention's entry into force between the countries, but following its
entry into force in Peru. The Convention entered into force separately
in both the United States and Peru prior to the child's removal from
Peru and retention in the United States. However, because the Convention
had yet to enter into force between those two countries, the issue was
whether the alleged wrongful retention in this case was subject to the
Convention. Article 35 of the Convention states that the Convention
applies "as between" Contracting States only to wrongful retentions
occurring "after its entry into force in those States." However, the
Articles of the Convention provide two separate instances at which the
Convention "enters into force." In order for a State to accede to the
Convention, it must submit an instrument of accession to the Ministry of
Foreign Affairs of the Kingdom of the Netherlands. Convention, art. 38.
Thereafter, both Articles 38 and 43 provide that the Convention
shall "enter into force" on the first day of the third calendar month
after the deposit of the country's instrument of accession. Convention,
arts. 38, 43. However, Article 38 continues, and states that despite an
acceding State's instrument of accession, the accession only has effect
on the relations between States when a Contracting State declares its
acceptance of the accession. Article 38 outlines the effect of accession
on the relations between States, stating, The Convention will enter into
force as between the acceding State and the State that has declared its
acceptance of the accession on the first day of the third calendar month
after the deposit of the declaration of acceptance. Because the
Convention offered these two separate times at which the Convention
"enters into force," this court had to determine which "entry into
force" is referred to in Article 35. The Court found that the language
of the Convention favored petitioner's position. Article 35 states that
the Convention applies to wrongful retentions occurring "after its entry
into force in those States." [See Article 35; Article 38; Article 39;
Article 43;]. The drafting history favored an interpretation of Article
35 which applies the Convention to wrongful removals and retentions
occurring after the Convention is in force in the State of habitual
residence and in the State to which the child is removed or retained,
regardless of the time of any other State's acceptance of the new
State's accession. The relations between States begin with an
application from one to another. Thus, although the Convention applies
to a wrongful removal or retention that occurs after a State's
instrument of accession is in force, an application for return related
to that removal or retention will not have any effect in another
Contracting State until that individual Contracting State has accepted
the acceding State. After reviewing the above factors, the court found
Article 35 requires only that the wrongful removal or retention at issue
occur after the Convention enters into force individually in the
acceding State and in the State to which the child was removed to or is
retained. Accordingly, the court found that the alleged wrongful
retention in this case was subject to the Convention because it occurred
after the Convention entered into force in both of the relevant States
in this action. As a result, respondent's motion to dismiss was denied.
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